Backman v. Secretary of the Commonwealth

441 N.E.2d 523, 387 Mass. 549, 1982 Mass. LEXIS 1751
CourtMassachusetts Supreme Judicial Court
DecidedNovember 1, 1982
StatusPublished
Cited by9 cases

This text of 441 N.E.2d 523 (Backman v. Secretary of the Commonwealth) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Backman v. Secretary of the Commonwealth, 441 N.E.2d 523, 387 Mass. 549, 1982 Mass. LEXIS 1751 (Mass. 1982).

Opinions

Wilkins, J.

On September 18, 1980, in response to a proclamation issued by the Governor, with the advice of the Executive Council, the General Court met in continuance [550]*550of a joint constitutional session that had adjourned on July 2, 1980. On September 19, 1980, the joint session approved a proposed constitutional amendment permitting capital punishment in the Commonwealth. A subsequent joint session, held in May, 1982, also approved the proposed constitutional amendment. Thus, the proposed amendment must be submitted to the people at the November 2,1982, State election,1 unless, as the plaintiff argues, this court should declare invalid the action of the September, 1980, joint session on the ground that the Governor did not follow appropriate procedures in calling that joint session to continue its deliberations on pending matters.

We heard argument in this case on August 4, 1982, and, on August 6, 1982, we ordered that judgment should be entered for the defendant Secretary of the Commonwealth, thus permitting him to submit the proposed constitutional amendment to the people at the November 2, 1982, State election. This opinion is issued in explanation of that order.

The plaintiff’s basic contention is that the Governor acted contrary to the Constitution in purporting to call a joint session under art. 48 of the Amendments without first calling the General Court into session pursuant to his powers under Part II, c. 2, § 1, art. 5, of the Massachusetts Constitution.2 We conclude that there is no explicit or necessarily implicit constitutional provision directing the manner in which the Governor shall call the General Court into joint session and [551]*551that, in the circumstances, where the members of the General Court in joint session accepted the Governor’s call and the joint session acted on various matters, this court should not disturb the procedure adopted by the Governor and accepted by the Legislature.

Our narrative, taken from a statement of agreed facts, starts with the assembling of a joint session of the General Court in May, 1980. Among the proposals for amendments to the Constitution of the Commonwealth was one “providing for capital punishment.” The joint session took no final action on this proposal before adjourning on July 2, 1980. On July 5, 1980, in response to an order adopted by the Senate and the House of Representatives, the Governor, with the advice and consent of the Executive Council, prorogued the General Court until the day preceding the first Wednesday of January, 1981.

On September 10, 1980, the Governor sent a letter to the Executive Council stating that, subject to the Council’s advice, he proposed to call “the members of the general court to assemble in special session” on September 18, 1980, at 11 a.m. On September 17, 1980, the Council advised the Governor of its consent to his request to recall the Legislature into special session and the Governor issued a proclamation calling the members of the General Court to assemble on September 18, 1980, “in continuance of joint constitutional session, which adjourned on July 2, 1980, to the end that final action may be taken upon all Proposals for Constitutional Amendments properly before it.”3 The Governor’s [552]*552request to the Council and the Council’s advice to the Governor speak in terms of calling or recalling the Legislature into special session, and the first “whereas” clause of the Governor’s proclamation incorporates the language of Part II, c. 2, § 1, art. 5, concerning the calling of the General Court into session sooner than the time to which it prorogued. The operative language of the proclamation, however, did not explicitly call the General Court into session as a General Court but only called the members of the General Court into joint constitutional session. It is the Governor’s alleged omission of any call of the General Court into session as a Legislature on which the plaintiff rests his argument.

At the joint session of September 18, 1980, Senator Back-man, the plaintiff in this action, raised a point of order challenging the Governor’s power to call the members of the General Court into joint session following adjournment of the joint session on July 2, 1980, and the prorogation of the General Court on July 5, 1980. The President of the Senate ruled that the point of order was not well taken. No appeal was taken from the ruling of the chair. Before us, the plaintiff neither argues nor concedes the point that, after prorogation of the General Court, the Governor lacked constitutional authority to recall the General Court and then to call a joint constitutional session. We do not pass on the point, although we note that there is no explicit constitutional pro[553]*553vision barring the Governor from doing so. See Opinion of the Justices, 334 Mass. 745, 758 (1956) (“[W]e find no time limit during the life of [a] General Court within which the Governor must call a continuance of the session”).

Senator Backman then raised a further point of order challenging the Governor’s proclamation “insofar as it may restrict the purpose for which the General Court was called together” because it unconstitutionally intruded on the lawmaking power of the General Court. The President of the Senate, as presiding officer, stated that it was not within his province to rule on constitutional questions. No appeal was taken from this ruling. Because the General Court did not undertake to transact any business as a legislature, we need not consider whether the Governor’s proclamation restricted, or could have restricted, legislative action in the face of a desire by the General Court to transact legislative business apart from matters considered in joint session. As far as appears in the record, Senator Backman did not raise the precise issue involved in this action during the September, 1980, joint session.

As indicated above, the amendment authorizing capital punishment was approved by the September, 1980, joint session and referred to the next General Court. A joint session held during the course of the 1982 legislative session approved the proposed constitutional amendment by a majority of all members elected, and the amendment was certified to the Secretary of the Commonwealth pursuant to art. 48 of the Amendments to the Constitution, as amended by art. 81 of the Amendments.

The plaintiff commenced this proceeding in September, 1980, in the Supreme Judicial Court for the County of Suffolk, but no action was taken on the merits of the plaintiff’s challenge to the propriety of the Governor’s call of the September, 1980, joint session until after the proposed constitutional amendment was approved for a second time. See Opinion of the Justices, 386 Mass. 1201, 1212-1213 n.3 (1982). The case is before us on a reservation and report, by a single justice of this court, including the plaintiff’s substi[554]*554tuted complaint, the defendant’s motion to dismiss the substituted complaint, and a statement of agreed facts.4

The defendant argues that the issue before the court is a political question that we should refrain from answering. The concept of a non justiciable political question has been more fully developed under the Constitution of the United States than under our State Constitution. See Goldwater v. Carter, 444 U.S.

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Backman v. Secretary of the Commonwealth
441 N.E.2d 523 (Massachusetts Supreme Judicial Court, 1982)

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Bluebook (online)
441 N.E.2d 523, 387 Mass. 549, 1982 Mass. LEXIS 1751, Counsel Stack Legal Research, https://law.counselstack.com/opinion/backman-v-secretary-of-the-commonwealth-mass-1982.